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Willson v. Arkansas Department of Human Services

United States Court of Appeals, Eighth Circuit

March 1, 2017

LaKeysia Wilson Plaintiff- Appellant
v.
Arkansas Department of Human Services Defendant-Appellee

          Submitted: September 20, 2016

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before LOKEN, BEAM, and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         The Arkansas Department of Human Services (DHS) terminated Lakeysia Y. Wilson, an African-American female, as a program supervisor. She sued DHS alleging disparate treatment on account of race, and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e-2 and 2000e-3(a). The district court dismissed both claims. Having jurisdiction under 28 U.S.C. § 1291, this court affirms in part and reverses in part.

         I.

         In June 2011, Wilson was hired as a field investigator at DHS. In 2013, DHS terminated another African-American field investigator, Sharon Meeks, for violating DHS policy. Meeks filed a discrimination charge with the Equal Employment Opportunity Commission and an internal grievance with DHS. A State Appeal Panel ordered her reinstated. After DHS said there were no available positions, Meeks applied for an open program-supervisor position in the Division of Aging and Adult Services.

         Patricia Robins, Wilson's Caucasian supervisor, led the investigation resulting in Meeks's termination. Robins urged Wilson to apply for the same open program-supervisor position that Meeks applied for. Wilson says that Robins urged her to apply because Robins "was determined to thwart the efforts of Mrs. Meeks." Wilson and Meeks were the only applicants interviewed. In March 2014, Wilson got the job-a promotion to program supervisor. DHS then re-hired Meeks in Wilson's old position, but fired her three months later.

         Shortly before and shortly after her promotion, Wilson received positive performance evaluations. She alleges that after Meeks was fired, Robins began to unfairly criticize her work performance. On June 30, Robins gave Wilson a choice between demotion or termination, but then stripped her of supervisory duties on July 2.

         Wilson filed a charge of discrimination with the EEOC on September 8, 2014, alleging harassment based on race and disability. Three weeks later, Wilson was placed on a Performance Improvement Plan (PIP). The next week, she received a written warning for work that a Caucasian female employee did not accomplish. Wilson was terminated on October 22, six weeks after filing the EEOC charge. The next day, Wilson filed a second EEOC charge alleging that between September 9 and October 22, she "was disciplined and discharged in retaliation for filing a previous charge and because of my race."

         Wilson sued DHS alleging disparate treatment, retaliation, and harassment. The district court dismissed the harassment claim as time-barred, and the disparate treatment and retaliation claims for failure to state a claim. Wilson appeals the dismissal of her disparate treatment and retaliation claims.

         II.

         Wilson argues that the district court erred in dismissing her claim for disparate treatment "on account of her race, when she was disciplined for something that a Caucasian female employee did not accomplish." A plaintiff can often avoid summary judgment with evidence showing instances of dissimilar discipline. See, e.g., Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994).

         The district court concluded that Wilson did not state a plausible claim for disparate treatment because "a written warning does not constitute an adverse employment action." See Singletary v. Mo. Dep't of Corr., 423 F.3d 886 (8th Cir. 2005) (holding that placement on administrative leave pending a disciplinary investigation was not adverse employment action where the plaintiff maintained the same pay, grade, and benefits). See also Boss v. Castro, 816 F.3d 910, 918 (7th Cir. 2016) ("[P]lacement on a PIP . . . is simply not materially adverse in the discrimination context."). But Wilson's disparate treatment claim suffers from a more serious defect: not alleging disparate treatment. Wilson's claim of discipline "for something that a Caucasian female ...


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